Over the past year the Supreme Court has considered the concept of habitual residence in three cases: Re A (Children)[2013] UKSC 60; Re L (a Child; Custody; Habitual Residence) [2013] UKSC 75 and Re LC (Children) [2014] UKSC 1. This trilogy of decisions has settled the test for habitual residence in respect of children and in particular they confirm that habitual residence is not a legal construct but rather a factual question. It therefore follows that it will fall to be determined in each case on the particular circumstances of the children and their parents.

Recently in the case of Re H (Jurisdiction) [2014] EWCA Civ 1101 the Court of Appeal considered again the parameters of the concept of habitual residence. In particular the case required it to decide whether in light of the trilogy of cases determined by the Supreme Court there continues to be a rule in English law that a parent cannot unilaterally change the habitual residence of a child. A second question which the Court revisited was the application of the Brussels II Regulation (BIIR) provisions in respect of jurisdiction to countries outside of the European Union. In respect of both questions the Court provided further guidance as to the development of these rapidly evolving areas.

As noted above, in the UKSC decisions that Court laid out clear guidance for other courts and practitioners in the field of international child law. In particular in Re A Baroness Hale noted in considering how the court should determine a child's habitual residence that 'the factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce' [see Black LJ in Re H at paragraph 27 quoting from Re A paragraph 54 and Re L paragraph 20]. It was against this backdrop that the Court of Appeal considered whether the decisions of the UKSC required any refinement or clarification. The decision in Re H is therefore of interest and significance to those practising in the area of private international law generally and abduction in particular.

Background

The factual history was unusual. The appellant was the father of two young children who were born in the UK but at the time of the application to the High Court had been living with their mother in Bangladesh for some five years. The children had left the jurisdiction of England and Wales in 2008 when they were aged 14 months and 6 weeks. The father had returned to the UK alone. Between 2008 and 2012 he made three visits to Bangladesh spending about two years in that jurisdiction during that time. A significant feature of the case was that the father had issued an application in the English Court for the children's return only in February 2013 and the time lapse between his return without the children and the application to the English Court featured heavily in the judicial analysis at first instance and before the Court of Appeal.

The appeal itself arose from an application which the father made under the inherent jurisdiction for an order requiring the mother to return the children to England. He asserted that the English court had jurisdiction on the basis that either the children were habitually resident in England at the time he issued proceedings in February 2013 or that they were British citizens.

At first instance Peter Jackson J determined the application and concluded that the children were not habitually resident in England and that on a factual analysis they had acquired habitual residence in Bangladesh. Peter Jackson J dismissed the father's applications. In his analysis of the facts he considered that the children were very young at the time they left England and that the majority of their lives had been spent in the care of their mother in Bangladesh. He noted that even if the father was correct in his assertion that the children had been unlawfully detained in Bangladesh by the mother they had long ceased to be habitually resident in England.

He did however accept that following the UKSC decision in A (Children) [2013] UKSC 60 the children's British citizenship provided a theorectical basis on which the court could exercise jurisdiction but he declined to exercise it given the factual history and further he noted that the courts of Bangladesh had been seised of the case for some time.

Unusually at the permission hearing Black LJ joined the children as parties to the appeal primarily because the case raised important legal issues and the mother had not participated in or been represented at first instance. The court was also of the view that the children's welfare required that they be independently and separately represented at the appeal hearing. Reunite were permitted to intervene given the potentially wide implications for international child abduction cases of the legal issues which arose in the appeal.

Is there a 'rule' which prevents a parent unilaterally changing a child's habitual residence?

In his first ground of appeal the father challenged the conclusion reached by Peter Jackson J that the children were no longer habitually resident in the UK. In particular he asserted that there was an established 'rule' in English law that where both parents had parental responsibility for a child the habitual residence could not be unilaterally changed by one parent. The father's case was that this rule was left undisturbed by the Supreme Court in the 'trilogy' of cases in which it had settled the parameters of habitual residence. The rule had been most clearly articulated by the Court of Appeal in Re J (A Minor) (Abduction; Custody Rights) [1990] 2 AC 562, at 572C. However Black LJ queried whether it had ever been accepted as a rule of law and she noted that 'it is worth remembering that no authority has been found in which the 'rule' is articulated as part of the ratio; it has simply been taken for granted for many years' [Re H paragraph 26].

Given the significance of the UKSC trilogy which the Court of Appeal characterised as a 'new departure for habitual residence' it considered it appropriate to review the continued existence of the 'rule' in light of those decisions [Re H paragraph 26]. In the trilogy the Supreme Court had not been directly concerned with the application of the 'rule' but its status and relevance had been considered by Baroness Hale LJ and Hughes LJ in both Re A and Re L. In Re A Baroness Hale noted that while there had been a 'tendency in the English courts to overlay the concept of habitual residence with legal constructs' including the 'rule' itself, it had not been recognized in other jurisdictions such as the US or in Europe (Re A paragraphs 39 and 40). Similarly Lord Hughes expressed the view that rather than treat the rule as legally binding it was better regarded as a 'helpful generalization of fact' but he acknowledged that it was close to a rule of law (Re L paragraphs 73 and 76).

In Re H both Cafcass and Reunite argued that the continued existence of the rule was incompatible with the recent UKSC decisions and that it could no longer be considered good law. Black LJ noted that what emerged from the UKSC cases was a disinclination to 'encumber the factual concept of habitual residence with supplementary rules and in particular to perpetuate the 'rule'', provided an approach could be found which prevented a parent from acting in a way which undermined the purpose of the Hague Convention and the jurisdictional provisions of the Brussels Regulation [paragraph 30]. She considered that the solution the UKSC had in mind was to treat the act of wrongful removal as having occurred earlier than is sometimes assumed so as to prevent a parent from establishing a new habitual residence and thereby achieving a unilateral change.

Black LJ was clear however that the UKSC had avoided any attempts to permit legal glosses on the factual concept of habitual residence and as such she did not consider that this 'rule' was itself to be treated as having survived those decisions. Further Black LJ accepted that given that parental intention was identified by Baroness Hale in Re A as one of the relevant factors which any court had to consider as part of the factual determination of where a child is habitually resident, a parent's ability to change a child's habitual residence unilaterally will continue to be limited. She consigned the 'rule' to history noting that it may in any event have been no more than a well established method of approaching cases [paragraph 34].

Does Article 10 of Brussels IIR apply where the child is removed outside of the EU?

Since the UKSC decision of Re I (A Child) (Contact Application; Jurisdiction)[2009] UKSC 10 it is clear that the application of the jurisdictional scheme in BIIR is not geographically limited to the EU. The extent to which the scheme can be extended to third states has been incrementally developed. In particular in Re A (above) the jurisdictional provisions of the Regulation were considered by Baroness Hale to apply regardless of whether there is an alternative jurisdiction in a non-member state (paragraph 33).

In Re A it appeared that both Baroness Hale and Lord Hughes contemplated the application of Article 10 BIIR to cases where the removal or retention of a child was to a country outside of the EU. In Re H the Court of Appeal had to directly consider that question in the context of the relevant facts of the case given that the father asserted a wrongful retention of children who had been habitually resident in England immediately before that had occurred. Black LJ took the opportunity to clarify the position and concluded that Article 10 of BIIR applied to any case where a child was habitually resident in England immediately before an unlawful removal or retention regardless of whether the removal was to a non EU state. That approach permits the English court to assert jurisdiction regardless of whether the state to which the child is removed is not an EU member or a party to the Hague Convention on Child Abduction.

When read in its entirety Article 10 provides a scheme for retention of jurisdiction but also includes provision for the retained jurisdiction to come to an end where the child has acquired a new habitual residence in another member state. In Re H the Court confined the application of Article 10 to those provisions which asserted jurisdiction and it reached the view that that part of the Article which governed the circumstances in which jurisdiction was lost could only be read as applying to another EU member state. The Court of Appeal rejected an argument from Cafcass that the Article should be constructed purposively to allow for jurisdiction to be lost in the circumstances contemplated by the Regulation, if a child acquired a new habitual residence, even if that occurred in a non member state. Black LJ considered that such an interpretation would strain the language of the Regulation in a way which went further than the member states had intended at the time of drafting. The Court considered that such an approach would have to be expressly provided for in the Regulation itself but it declined to read it into the Regulation otherwise.

Having concluded that Article 10 applied in Re H the Court then considered whether to exercise that jurisdiction. Black LJ did not consider that the Court at first instance erred in deciding to dismiss the case or that it should have adjourned the case to obtain for itself more information from Bangladesh about the children's welfare. In doing so she reminded parties to family litigation, including international cases, that there is an obligation on parties to gather their own evidence and to present it to the court (paragraph 64). She concluded that no English court would be inclined to intervene in the circumstances which appeared to exist on the evidence, namely that the children had lived abroad for such a long time, to order their return to a country of which they were unlikely to have any recollection. The appeal was dismissed.

Re H is an interesting and useful decision which confirms that the approach of any court in determining the habitual residence of children should be limited to an analysis of the relevant facts. It is significant also that the appellate courts continue to broaden the scope of BIIR in an attempt to ensure that the protective reach of the English courts is as wide as possible in cases of wrongful removal or retention of children overseas. In practice this may have the effect of ameliorating some of the difficult challenges which arise where children are removed to non-Hague Convention cases.